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Friday, 15 October 2010

A Lot of Todd Willingham News & Developments

As the Court of Inquiry was ending, the Texas 3rd Court of Appeals ordered a halt to the special hearing. On another front the Forensic Science Commission is set to take up the Willingham/arson forensics investigation again.

It was an unusual hearing. The subject at the center of it all, Cameron Todd Willingham, was not present. After being convicted of murdering his three children in a 1991 house fire, he was executed in 2004.

Members of Mr. Willingham’s family, working with lawyers who oppose the death penalty, had asked for the rare and controversial hearing, held here on Thursday, to investigate whether Mr. Willingham was wrongfully convicted. They argue that the proceeding, known as a court of inquiry, could restore Mr. Willingham’s reputation, a right guaranteed under Texas law, even to the dead.

But they also say that the hearing is more than symbolic — it could cast in a new light the Lone Star State’s record on executions. And more broadly, they argue, it is a cautionary tale about the power of flawed science to sway a courtroom, and a glaring injustice that could affect debates over the fairness of the death penalty.

That debate has been framed, in part, by a 2006 opinion written by Justice Antonin Scalia of the United States Supreme Court, in which he said that the dissent in a case had not cited “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.”

Many who oppose the death penalty have taken Justice Scalia’s statement as a challenge, and argue that the Willingham case is their proof.

And:

At the end of the day, however, as testimony was closing down, the Texas Third Court of Appeals in Austin issued a stay at Mr. Thompson’s request, ordering Judge Baird not to hold further proceedings or to issue rulings until next Friday, and asked the Willingham team to explain why the case should be allowed to go forward.

The focus of lawyers for Mr. Willingham’s family was on evidence presented by fire marshals at Mr. Willingham’s original trial — evidence that nine experts have said included “many critical errors,” as one report put it. Several of the experts were working at the request of the Innocence Project, an organization that seeks the acquittal of wrongfully convicted people.

The expert who wrote that critical report, Gerald Hurst, argued that evidence suggested the fire was accidental, not arson. His report was sent to Gov. Rick Perry shortly before the execution, but Mr. Perry declined to halt or delay the procedure.

The evidence presented at trial that Mr. Willingham committed arson “amounts to junk science,” Gerald H. Goldstein, a San Antonio lawyer arguing on behalf of the Willingham family, said in the courtroom.

Judge Baird asked Dr. Hurst at the hearing whether his review of the case could rule out arson “within a reasonable degree of scientific certainty.”

Dr. Hurst demurred. “I never had a case where I could exclude arson,” he said. “It’s not possible to do that.”

The judge then asked if “there’s nothing in the evidence you’ve seen here that suggests arson.”

“That’s correct,” Dr. Hurst said.

John Lentini, a fire expert who has studied flawed arson investigations, hammered at the evidence and analysis from fire marshals at the Willingham trial.

Under questioning by Barry Scheck, a founder of the Innocence Project, Mr. Lentini ridiculed critical testimony at the trial that 20 factors, including burn patterns on the floor and cracks in the windows, proved that Mr. Willingham spread accelerants to fuel the fire.

No such chemicals were found in the house, Mr. Lentini said. Much of the analysis of Manuel Vasquez, the state fire marshal in the Willingham trial, “didn’t even meet the standards of 1991,” a time that Mr. Lentini characterized as having “a wretched state of the art.”

The current fire marshal, Paul Maldonado, stands by the work of the original marshals in the Willingham case, which Mr. Lentini said he found mystifying.

Mr. Lentini said that the flaws in the science required the state to go back and take a new look at other arson convictions. “I can understand why the fire marshal doesn’t want to go back and review hundreds of cases,” he said. “But that’s probably his duty.”

Governor Perry has fought the review of the case, and declined to participate in the hearing. Katherine Cesinger, his spokeswoman, said, “Nothing the Austin court does can change the fact that Todd Willingham was convicted in a trial court with the appropriate jurisdiction, and sentenced to death by a jury of his peers for murdering his three young daughters.”

A state appeals court halted a hearing Thursday that was to determine whether Texas wrongfully executed a man based on faulty arson evidence.

The court granted an emergency stay and ordered District Judge Charlie Baird not to rule on the case. The order gives Innocence Project lawyers seeking to clear Cameron Todd Willingham's name until Oct. 22 to respond.

Willingham was executed in 2004 after being convicted of setting fire to his Corsicana home, killing his three daughters. If he is exonerated, it would mark the first time an official in the nation's most active death penalty state has formally declared that someone was wrongfully executed.

Navarro County District Attorney R. Lowell Thompson, whose office convicted Willingham in 1992, sought the stay after Baird declined to recuse himself. Thompson has questioned Baird's impartiality, noting he received an award this year from the Texas Coalition to Abolish the Death Penalty.

The Texas Forensic Science Commission is scheduled to meet Friday in Austin and discuss the Cameron Todd Willingham case. The meeting comes a day after a state appeals court in Austin halted a hearing into whether Willingham might be innocent of the 1991 fire that killed his three daughters.

Thursday's inquiry began with an aggressive attack on a deputy state fire marshal's 1991 investigation into the fire at Willingham's house.

Florida fire expert John Lentini attacked the findings of Manuel Vasquez, now deceased, in which Vasquez cited what he said were 20 indicators of arson at the small, wood-framed house.

"None of them, not one, say this is a set fire," Lentini said.

With the help of a PowerPoint presentation, Lentini walked Baird through each of the reasons Vasquez cited in determining the fire was intentionally set. He noted, for example, that Vasquez found that charring on the floor of the home was proof that an accelerant was used because "fire doesn't go down unless it has help."

"That's wrong," Lentini said. He explained how all combustible material inside a room catches fire, including the floor, during a frequent fire event called a flashover.

Lentini attacked Vasquez's findings that burn patterns on the floor are also proof that an accelerant was used, noting that those patterns are caused when objects on the floor protect certain areas of flooring from the fire.

He said arson investigators at one time believed that "V" patterns of fire damage showed points of origin and that multiple "V" patterns was an indicator that a fire was set in multiple places and therefore arson.

Now, Lentini said, fire scientists know that "V" patterns are often present near doors and windows, places where air fuels the fire.

Lentini said that nine fire experts have concluded after reviewing the reports, pictures and videos from the Willingham investigation that there is not a shred of evidence that the fire was intentionally set. He said he has heard from only one expert who disagrees, but said that opinion is based on Willingham's behavior after the fire and other evidence, not on the science.

Lentini also attacked current state Fire Marshal Paul Maldonado, whose office was also invited to participate in the inquiry, for announcing in August that the office stands behind the original findings in the case. He suggested that Maldonado, who could not be reached for comment, was trying to avoid having to re-examine other convictions that resulted from the flawed science.

Baird also watched a presentation by Goldstein dismantling the credibility of Johnny Everett Webb, who testified at Willingham's trial that Willingham had confessed to him while in jail.

In response to Webb's claim that the fire was meant to cover injuries inflicted by Willingham's wife to one of the girls, Goldstein submitted autopsy reports that show no physical injuries to the girls.

Goldstein said Webb has mental health issues and on two separate occasions has stated that his testimony about Willingham's confession was false.

White made a closing argument in which he noted that he supports the death penalty but that he believes that it should only be used in cases where evidence is overwhelming because of the "frailties in the system exposed by Willingham's case."

He called on Baird to restore Willingham's name.

"The state of the testimony that convicted him has been impugned today," White said. "Every shred of evidence points conclusively to his innocence."

"Every shred of evidence points conclusively to his innocence," said former Gov. Mark White, one of the attorneys representing the family. White and other attorneys also criticized Gov. Rick Perry's decision to allow the execution to go forward in spite of a last-minute report from one of the fire experts, Dr. Gerald Hurst, who testified Thursday that he was never contacted by the governor's office or other officials in response to his findings.

Perry has repeatedly defended his handling of the case, describing Willingham as a "monster" whose appeals were rejected by nine state and federal courts.

"Regardless of how the proceedings play out, the bottom line is nothing the Austin court does can change the fact that Todd Willingham was convicted in a trial court with the appropriate jurisdiction, and sentenced to death by a jury of his peers for murdering his three young daughters," said Lucy Nashed, a Perry spokesperson.

Perry's office, Navarro County prosecutors and officials with the State Fire Marshal's Office declined Baird's invitation to appear at the proceedings, essentially allowing the Willingham attorneys to present their case without a challenge from the other side. Baird announced that he had extended an invitation to Willingham's ex-wife, Stacy Kuykendall, who has said her husband told her he deliberately set the fire, but Kuykendall's attorney sent word Thursday that she would not appear.

"Unfortunately, every time the anti-death penalty advocates renew their crusade against capital punishment using this case, old wounds are opened up for her," wrote the attorney, former U.S. prosecutor Johnny Sutton.

The inquiry was concluded in under four hours as the Willingham team presented testimony from Hurst- and Florida-based fire expert John Lentini.

As Willingham's mother and cousin sat stiffly on the courtroom's front bench, fire experts Gerald Hurst and John Lentini testified that not only was a fire inspector's testimony in Willingham's trial based on bad science but that his interpretations were "totally off the wall."

Thursday's testimony came in a court of inquiry one day before the Texas Forensic Science Commission was set to hold a meeting in Austin. Willingham's case is on today's commission agenda.

Navarro County District Attorney Lowell Thompson last week asked Baird to step aside. Thompson argued that the judge's impartiality was called into question by the fact that he sat on the state Court of Criminal Appeals when it upheld Willingham's conviction and wrote a concurring opinion supporting the ruling. In addition, he argued, Baird received an award in February from the Texas Coalition to Abolish the Death Penalty.

Baird rejected Thompson's motion Thursday, finding that the prosecutor's office was not a party to the family's request for a "court of inquiry," a rare proceeding under Texas law.

"I just don't believe that you, in your capacity as the Navarro County district attorney, are a part of this lawsuit," Baird said.

Thompson left the courtroom after the ruling without participating in Thursday's hearing, which was held to determine whether there is enough evidence of a wrongful conviction to open a court of inquiry. The proceedings are separate from the long-running investigation being conducted by the Texas Forensic Science Commission, which is scheduled to take up the Willingham case again Friday.

Willingham's relatives have the support of The Innocence Project, which requested the Forensic Science Commission's investigation. The group's founder, defense lawyer Barry Scheck, appeared in court Thursday to argue for a court of inquiry, telling Baird the testimony of a state fire marshal who was the prosecution's key witness was "completely wrong and misleading."

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The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.